Canada’s ranking on Amal Clooney’s TrialWatch | Sarah Molyneaux

Powerhouse human rights lawyer Amal Clooney and movie star husband George announced their launch of TrialWatch to fanfare in late April.

With the goal of monitoring and responding to human rights abuse in criminal trials worldwide, TrialWatch has bold objectives: advocating for defendants in the press, funding legal representation and developing a global justice index to rank countries on the fairness of their justice systems.

The project has a broad range of targets, from prosecution of LGBTQ+ persons, women’s rights advocates and journalists to closed court proceedings. And, the Clooney Foundation for Justice has an impressive list of partners in this endeavour. The Office of the United Nations High Commissioner for Human Rights, the American Bar Association, Columbia Law School and Microsoft are all on board.

It remains to be seen how TrialWatch will differ from organizations like Amnesty International, which has been doing the heavy lifting of monitoring international human rights abuses and advocating against unjust trials for decades.

Cynically, one assumes that Microsoft is looking to bolster its image as a socially responsible corporation without partnering with an organization which has brought its own complicity in human rights abuses to light.

Optimistically, more oversight can’t hurt with a project as big as holding the entire world’s justice systems to account.

Canada’s justice index

Unsurprisingly, the Clooneys’ comments at the launch focused on injustices in countries like Brunei, Egypt and Saudi Arabia. The legalized human rights abuses highlighted at the launch are deeply disturbing. And, this list includes countries that have already been the target of Clooney advocacy.

That doesn’t mean that countries like Canada can rest on their laurels. It’s no defence to say that we’re not the worst.

While laws criminalizing homosexuality have been off the books here for years, the arrest of activists and even journalists continues here at home, if at a lower rate than in many other countries. The Supreme Court of Canada itself recently faced criticism for a decision ordering a VICE Canada reporter to make disclosures to the RCMP following a finding that the public’s interest in law enforcement outweighed press freedoms.

As we critique political disappearances abroad, Canada isn’t immune from the injustice of uninvestigated or under-investigated missing persons or murder cases. Accounts by Indigenous communities and in-depth investigative reporting by the CBC has shown that Indigenous women continue to go missing or have their murders dismissed by Canadian police.

In addition to unjust arrest and inadequate investigations, systemic and procedural issues in our criminal justice and prison systems permit abuse, which has a disproportionate impact on Indigenous peoples. Like some of the targets of TrialWatch, the recent Adam Capay case was closed (subject to a publication ban) for nearly three years, making it difficult for the public to know the degree to which his Charter rights were trampled while in custody until after a Judge finally stayed his charges.

We now know that Capay spent 1,647 days in solitary confinement over the course of four years. Capay, a Lac Seul First Nation man with pre-existing mental illness, was just 19 when he was charged with murdering a fellow inmate and began to serve time in solitary confinement.

Unlike Capay, the vast majority of prisoners held in solitary confinement in Canada are held there for non-disciplinary, “administrative” reasons. Like our broader prison population, people in solitary confinement are disproportionately Indigenous. Mandatory periodic reviews of disciplinary solitary confinement cases may be skipped or cursory, but those held in administrative confinement have no right to a hearing at all.

On April 13, 2019, the landmark decision of Ontario’s top court came into effect, putting a 15-day cap on solitary confinement in prisons, as reported by The Lawyer's Daily.

More recently, dramatic cuts to Legal Aid Ontario (LAO) funding place the reputation of our justice system at significant risk. With LAO funding reduced by 30 per cent and the categorical elimination of funding for refugee and immigration cases by that body, a growing number of Ontario’s poor will be left to defend themselves and face deportation to the very countries singled out by TrialWatch for critique thanks to an inability to access publicly funded representation.

Fewer will be able to exercise their Charter right to counsel, let alone mount Charter challenges arising from mistreatment in the system or discriminatory laws. A growing number of refugees will be deported following unsuccessful claims litigated without assistance of counsel and will face precisely the types of prosecutions highlighted by the Clooney project: charges related to LGBTQ+ identity, women’s rights activism and other human rights advocacy in all corners of the world.

Sunlight best disinfectant

Unlike some of my colleagues, I was encouraged by the Court of Appeal’s first ever livestreamed hearing.

Although we need to remain cautious against undue showmanship in court and the misuse of the judicial record in the media, these are lesser issues than the serious problems that arise when our justice system remains opaque and impenetrable to the public.

If lawyers or judges fear public scrutiny of the legal system, that’s an indicator of problems with our system — not with the scrutiny. In this respect, the Clooney Foundation selected an excellent quote by Justice Louis Brandeis in its launch materials: “Sunlight is the best disinfectant.”

If we end up lower than we’d like on the TrialWatch Justice Index, I may not be surprised, but I hope that that shame will motivate us to address the injustices in our own system and our complicity in global injustice.

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